Obama Legal Team Wants Defendants' Rights Limited

WASHINGTON — The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant's lawyer is present, another stark example of the White House seeking to limit rather than expand rights.

The administration's action _ and several others _ have disappointed civil rights and civil liberties groups that expected President Barack Obama to reverse the policies of his Republican predecessor, George W. Bush, after the Democrat's call for change during the 2008 campaign.

Since taking office, Obama has drawn criticism for backing the continued imprisonment of enemy combatants in Afghanistan without trial, invoking the "state secrets" privilege to avoid releasing information in lawsuits and limiting the rights of prisoners to test genetic evidence used to convict them.

The case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one, unless the attorney is present. The decision applies even to defendants who agree to talk to the authorities without their lawyers.

Anything police learn through such questioning cannot be used against the defendant at trial. The opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time.

The justices could decide as early as Friday whether they want to hear arguments on the issue as they wrestle with an ongoing case from Louisiana that involves police questioning of an indigent defendant that led to a murder confession and a death sentence.

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

At the same time, the administration acknowledges that the decision "only occasionally prevents federal prosecutors from obtaining appropriate convictions."

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The administration's legal move is a reminder that Obama, who has moved from campaigning to governing, now speaks for federal prosecutors.

The administration's position assumes a level playing field, with equally savvy police and criminal suspects, lawyers on the other side of the case said. But the protection offered by the court in Stevens' 1986 opinion is especially important for vulnerable defendants, including the mentally and developmentally disabled, addicts, juveniles and the poor, the lawyers said.

"Your right to assistance of counsel can be undermined if somebody on the other side who is much more sophisticated than you are comes and talks to you and asks for information," said Sidney Rosdeitcher, a New York lawyer who advises the Brennan Center for Justice at New York University.

Stephen B. Bright, a lawyer who works with poor defendants at the Southern Center for Human Rights in Atlanta, said the administration's position "is disappointing, no question."

Bright said that poor defendants' constitutional right to a lawyer, spelled out by the high court in 1965, has been neglected in recent years. "I would hope that this administration would be doing things to shore up the right to counsel for poor people accused of crimes," said Bright, whose group joined with the Brennan Center and other rights organizations in a court filing opposing the administration's position.

Former Deputy Attorney General Larry Thompson and former FBI Director William Sessions are among 19 one-time judges and prosecutors urging the court to leave the decision in place because it has been incorporated into routine police practice and establishes a rule on interrogations that is easy to follow.

Eleven states also are echoing the administration's call to overrule the 1986 case.

Justice Samuel Alito first raised the prospect of overruling the decision at arguments in January over the rights of Jesse Montejo, the Louisiana death row inmate.

Montejo's lawyer, Donald Verrilli, urged the court not to do it. Since then, Verrilli has joined the Justice Department, but played no role in the department's brief.

Comments

[paganmist]

Just read the amicus.

So the way the law stands now, if I - for some insane reason - wanted to waive my 6th amendment rights, I... can't? Rather, I *can*, but even then, anything I say would be invalid and unable to be used by prosecution, because there's a chance the the police actually coerced me into my statement.

The idea seems to be here that a defendent would not willingly incriminate him/herself without some sort of police trickery involved, which I don't think is necessarily the case.

[formerprosecutor]

That's not what this is about; did you read the last paragraph in the brief? Though I admit, we cannot trust wolves in sheep's clothing.

Geez June is a long way of....

[Wide Stance]

I'm fascinated by fallacy, and this is a compelling example. You keep referring to "inaccuracies," and telling people to read it, yet you provide nothing of substance.

I'm inclined to ignore you, and suggest others do the same.

[wijg]

You made this statement down thread:

"The President directs Justice; he has asked Justice to weigh in on this case."

After reading your comment I'm inclined to believe you are NOT a "formerpro­secuter."

[Wide Stance]

Why not read all of the briefs? These are persuasive arguments. The Court hears all arguments. Why should we read only one--and agree with it?

[Wide Stance]

This is the respondent's brief:

http://www.scotusblog.com/wp/wp-content/uploads/2009/04/nacdl-et-al-4-14-09.pdf

Filed by the National Association of Criminal Defense Lawyers, ACLU, etc.

----------­----------­----------­----------­------

US Amicus brief:

http://www.scotusblog.com/wp/wp-content/uploads/2009/04/us-amicus-in-montejo-4-14-09.pdf

[formerprosecutor]

So, you have read them an still think the artcile is correct; well, that is why we have "lefgal opinions"; we don't agree on the interpretations

[fredamae]

"we don't agree on the interpretations"
Which, imvho, (from an ordinary citizens perspective,) is exactly why We are left so unprotected.
LE, Attorney's all of which We, the alleged Criminals depend upon, Cannot ever agree upon the interpretations of the Law(s).

Even those of us who May Believe We understand a Law. don't.

[Wide Stance]

Wrong, how can we have a difference of opinion when you hadn't stated your opinion? It isn't logical.

You were running around policing every comment with "read the brief," rather than providing counter argument. You were attempting to convey that you have won an argument you haven't had. Repeatedly.

[pragmaticdallasite]

I really don't have a problem with this "reform" as long as there's reform in other parts of the legal system.

Obama laughed off the serious question about marijuana reform, which is a huge issue for the millions who are not only in jail, but people like me who despite a college education and good qualifications can't get a decent job because of a past marijuana arrest.

Justice works both ways Mr. President, not only to make sure the guilty are punished but to make sure the innocent aren't unfairly punished.

[OceanSize]

I'm so confused. At it's surface, this announcement certainly seems unwarranted and undemocratic. Why would the Obama administration choose to make this an issue and overturn something that SEEMS so fair? What on earth about this law screams "change me"? What are they trying to accomplish through this? I am sure the Obama-haters will say it is proof that Obama wants to take away all of our rights, etc etc, but I'm curious what less reactionary, more rational minds have to say on the subject. I am willing to give the administration the benefit of the doubt thus far. Can someone who understands the intricacies of law better than I (say, like, formerprosecutor) explain the administration's probable perspective on this?

[chocolatecity]

Is it fair that law enforcement has to basically ignore statements made to police before the lawyer is present? I don't think that is fair to police. This doesn't take away my right to remain silent. I can if I choose to.

[Bcasey11]

Obama supports illegal wire-tapping also, Americans need to secure their rights now before its to late

[formerprosecutor]

Everyone needs to stop commenting until they read "Justice's" brief; it is eye opening. And will start an entirely new debate.

[fredamae]

"And will start an entirely new debate."

Thanks a lot :)

[formerprosecutor]

The last paragraph belongs in the defendants brief; now what does that tell us?

[Tkevan]

Just read the amicus brief. How about we error on the side of caution? So, if the 'confession' of Montejo should be held in evidence, even though we have no idea what went on prior to that confession? Just because we have a tape showing him waiving that right? Who decides if a defendant "voluntarily, knowingly, and intelligently waived that right"? That very reason of 'intelligently' waiving a right is the crux of the issue. The lawyer is to decide, in a legal view, what is intelligent. A layman really can't. Bad move by the Administration.

[formerprosecutor]

I could have saved myself a lot of time if I had read Justice's brief before I commented.

shame on me.

I would never second guess justice or SCOTUS, but it sound like to me they want to overturn Jackson and extend to defendants that haven't actually ASKED for counsel.
because, the current rule (under Jackson) is "void for vagueness" and no one can tell what" silence means"

but the brief will require mor ethan a fives second reading. everybody have a good day

[chocolatecity]

So a person has the right to remain silent but not the right to speak for themselves if they so choose? Miranda specifically states that anything said can be used against you. It does not state that anything you say can be recanted if you say them without the presence of a lawyer.

[OceanSize]

It's 21 pages and uses language I don't have the patience to unravel right now. Is there a Clif's Notes version? Bullet points? ;-) Why is Mich v. Jackson so important to the administration? Do they feel this is going to tie their hands in some upcoming prosecutions or something? Say, like the Guatanamo detainees?

[formerprosecutor]

"trust us" say the lawyers

[ContraEgoiste]

http://www.scotusblog.com/wp/us-challenges-michigan-v-jackson/


The Court ruled in Michigan~v~ Jackson 1986 decision that, once an accused has claimed the right to counsel in court, any waiver of that right during police questioning would not be valid unless the individual initiated communication with the officers.

Siding with a group of states that had argued earlier that the Jackson precedent was no longer necessary to protect the rights of suspects in police custody, Solicitor General Elena Kagan made the same point. The U.S. brief said that the ruling is not needed “given the purposes of the Sixth Amendment and the existence of other strong protections against coercion.”

The brief continued: “Although the Sixth~Amendment affords criminal defendants a right to counsel at certain critical pre-trial stages, the Amendment should not prevent a criminal~defendant from waiving that right and answering questions from police following assertion of that right at arraignment. Jackson serves no real purpose and fits poorly with this Court’s recent precedent; although the decision only occasionally prevents federal prosecutors from obtaining appropriate convictions, even that cost outweighs the decision’s meager benefits.”

By contrast, a group of former top Justice Department officials, ex-prosecutors at the federal and state level, and former judges asked the Court in an amici brief to keep the Jackson decision intact, saying it had provided a “bright-line rule” that has now become “embedded in routine police practice,” just as the warnings requirement of Miranda v. Arizona has.

[formerprosecutor]

just curious; did you read any comments before you posted?

[Wide Stance]

Just curious, why don't you provide argument, instead of trying to discredit others?

[ContraEgoiste]

huh? And what does other's comments have to do with additional info to clarify the issue??

[wgsalter]

However, MInnick V Mississippi (1990) ruled that once the accused has requested counsel, that police may not interrogate without counsel present EVEN IF the accused has initiated the conversation. In that case, an (apparently) uncoerced confession was disallowed, because counsel was not present.

[formerprosecutor]

In addition to some other "end runs", but under Jackson, the cops were obligated to communicate and make active efforts to find out if he had a lawyer (they claim they didn't know he did)

[ContraEgoiste]

Yes, the language in the HP article seems biased, but, if removing this ruling poses absolutely no changes to existing rights, why bother to do it?? Why go through the legal complexities of doing so and creating an uproar? Why not just leave the " "bright-line rule"?

[nycboy]

I must give props to huffpo for doing some unbiased reporting for once. I still support the Prez in all he does but if we as dems are willing to take the power we need to be willing to accept some of the failings that Obama will most surely get himself into.

[formerprosecutor]

this is an AP article; and it is very inaccurate

[Wide Stance]

How so? People continue to comment that it is inaccurate, but fail to provide evidence of those inaccuracies.

[KoolAidDrinkersAnonymous]

After reading all these posts, I have realized that it is true, nothing Obama says or does will ever be considered bad in the liberal eye...

Keeping rendition - just fine
drones downing innocent civilians in pakistan - just fine
keeping prisoners in secret cia hideout prisons - just fine
lying about having NO lobbyist in his administration - just fine
keeping 50,000 troops in that wrong place - just fine
expanding the w ar in afghanistan - just fine
allowing other countries to in terrogate so we can say we do not do that - just fine
Spending more money than we will ever be able to pay back - just fine

[wltdnfaded]

Yeah yeah yeah, blah blah blah. Typical black and white Rep-anarchist thinking. See again, you're wrong-- although there are some who will blindly follow a leader they adore (this does happen on both sides of the American political landscape), it is more than apparent reading the posts here and on other sites that progressives are concerned about some of Obama's policies (like me). But unlike the Bush years, even those who support our new POTUS are no longer afraid of criticizing him when criticism is due. President Obama expressed this during his campaign. He has expressed that not only would he welcome criticism, he EXPECTS it from the American people.

So just stop with the whole "it's OK if Obama does it" crap. It's not true and you know it.

[wisecrack]

Go back and count the number of posts in the torture article that admit to not understanding the situation, but saying that regardless Obama is doing the right thing. LOL.

[OceanSize]

You are seeing what you want to see.

[TheFobster]

CHAINS WE CAN BELIEVE IN!

[DodgeCounty]

A typical scenario which would be affected by the ruling in this case:

A defendant is arraigned and counsel is appointed to represent him. The cops then put an officer in his cell posing as another inmate or send around a cop posing as a reporter. The cop/inmate/reporter starts asking the defendant about his case and elicits incriminating statements.

Currently, those statements are inadmissible under the Michigan v. Jackson case.

But should they be? One side says they should be inadmissible. If a post-arrest pre-arraignment statement elicited by the cops while the guy is in custody after the guy *asks* for an attorney is not admissible under another case (Edwards v. Arizona), then a post-arraignment statement made when he actually *had* an attorney should not be admissible either.

The other side will argue that the Edwards rule is designed to prevent coercive questioning of a defendant in custody by the cops when it is clear the defendant wants his attorney present because statements made under coercion are not reliable. But the simple fact that a defendant has been appointed an attorney does not otherwise render statements made during questioning coerced or unreliable. This is the Administrations position.

In the current case before the court (thanks former prosecutor for the information) the cops elicited an incriminating statement (the letter) even after counsel had been appointed, although the defendant apparently did not request counsel be appointed. The Administration says that statement should come in. I think.

[williamg]

Thank you.

[formerprosecutor]

That is pretty much it; and then factor this citation from "Jackson"

The State points to another factual difference: the police may not know of the defendant's request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. [Footnote 8] One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court).

[formerprosecutor]

and so , now theissue is : what about a dfendant that never asks for counsel , but has been appointed one; at what point did LE violate his rights? Jackson says they have a duty to find out. and after they tell him, then what? can he waive? Is silence a waiver?

[fredamae]

So, in a Nutshell. WE Need To Demand Truth In Journalism" instead of Jumping off the Obama ship.

[wisecrack]

De NILE.

[urgk]

The Obama team's reasoning as presented in the Montejo case -->

Although the Sixth Amendment affords criminal defendants a right to counsel at certain critical pre-trial stages, the Amendment should not prevent a criminal defendant from waiving that right and answering questions from police following assertion of that right at arraignment. Jackson serves no real purpose and fits poorly with this Court’s recent precedent; although the decision only occasionally prevents federal prosecutors from obtaining appropriate convictions, even that cost outweighs the decision’s meager benefits.

http://michiganmessenger.com/17022/obama-solicitor-general-wants-key-michigan-precedent-overturned

And I thought this was interesting. --> "A group of 19 former judges, prosecutors and law enforcement officials, including prominent conservatives like former FBI Director William Sessions and former Bush administration Deputy Attorney General Larry Thompson, have filed an amicus brief (PDF) arguing strongly against overturning Jackson. "

Makes you wonder why.

[formerprosecutor]

You can add me to the list. and Stevens said quite well:

"... that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."

..."[G]ive­n the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary,­..."

[DodgeCounty]

"The case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one, unless the attorney is present."

By "waiving" they mean "not invoking again" -- "answering questions" *when the cops initiate the questioning* A bit disingenous if the guy previously invoked.

[urgk]

Another version of the AP story has the sentence "While President Barack Obama has reversed many policies of his Republican predecessor, George W. Bush, the defendants' rights case is another stark example of the White House seeking to limit rather than expand rights."

The link --> http://www.kfsm.com/news/nationworld/sns-ap-us-obama-defendants-rights,0,7358945.story

The first part of that has been omitted here. It changes the tone of the article.

[MomfromTexas]

This is the 1987 case:

http://supreme.justia.com/us/475/625/case.html

[formerprosecutor]

and from reading that case; what diod you take away from it ; that applies to Montejo. (and I am not being snarky at all) I am intersted in what you think after comparing the cases

[MomfromTexas]

I haven't gotten that far, yet, but my concern is the "interim" discussed in the case below, and I'm going to have to read the Obama administration's brief to see how my concerns are addressed:

" Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him. Prior to that questioning, the officers properly advised Bladel of his Miranda rights. [Footnote 1] Although he had inquired about his representation several times since the arraignment, Bladel was not told that a law firm had been appointed to represent him."

[Tkevan]

In the Montejo, the "72 hour hearing", here in LA, is the arraignment and assignment of counsel. The 'appology letter' was written the day after, by the 'suggestion' of the detective. Under Michigan V. Jackson, this would not be held in evidence, as it was after the 6th ammendment was applied.

The confession, again after request for counsel, would be covered under the 5th. Jackson V. Michigan held that that confession should not have been held in evidence because it came after the request for counsel, and without counsel present...­unless the defendant initiated the "further communication, exchanges, or conversations with the police. However, in the Montejo case, we know that the comment that he " had let the detective down." likely initiated the conversation, and so violated Michigan V. Jackson. The case SHOULD have been reversed by LA Supreme Court.

[MomfromTexas]

This is what the Obama administration has to say about it:

http://www.scotusblog.com/wp/wp-content/uploads/2009/04/us-amicus-in-montejo-4-14-09.pdf

[DodgeCounty]

Thank you.

[formerprosecutor]

VERY INTERESTING!!!! I am going on a wait and see attitude on this brief. Especially the last paragraph. I think there is a trojan horse in this filing.